New York Lawyer's Legal Updates

Do I Have To Prove I Am Innocent For Immigration Purposes (Shoplifting)?

I receive frequent inquiries from non US citizens (people who are in the US on F1 or B1 visa; or those with a green card but no citizenship) who ask me the same question: if they were charged with a shoplifting charge, do they have to prove their innocent to avoid deportation?

First, a person accused of a crime does not have a burden of proving he/she is innocent. It is the prosecutor who has to prove guilt beyond reasonable doubt.

Second, a crime of shoplifting or petit larceny, is a crime of moral turpitude. Each state has its own laws regarding punishment and as a result immigration consequences for shoplifting conviction. In New York, petite larceny under NY PL section 155.25 is an A misdemeanor punishable up to one year in jail. Because it is a crime of moral turpitude, a person without a green card, who is convicted of this crime or pleads guilty to it, might be deportable and inadmissible. Conviction of petit larceny for a permanent resident committed within five years of admission may also cause REMOVAL or deportation. The precise consequences of conviction will depend on the punishment imposed and the status of the immigrant.

However, the immigration consequences can be avoided if the person follows an advice of an experienced immigration lawyer. An accused person may plead guilty to Disorderly Conduct, accept an offer of Adjudication in Contemplation of Dismissal (An “ACD”), plead guilty to an attempt to commit the crime (110.00) which is a B misdemeanor. It is very important while accepting a plea, to avoid admission on the record of the facts that constitutes a crime.

As such, even if a non US citizen was charged with a crime, and even if the ICE put a hold on the person, the person still has a chance of winning his/her immigration case. There may be defenses available and it is best to consult with an Immigration attorney who is knowledgeable in the area of criminal convictions and their consequences.